B.A.LL.B.

(HONS) /
B.A.LL.B. (HONS) / LL.B / B BA
Session -2020-2021
Name of the Student : Paryushi Koshal

Semester : 5thsem Enroll No:. DL1801516

University Exam Roll No .: 80440505
Status : Regular
Assignment Subject: Jurisprudence
Assignment Topic: Customs as a source of law

Submitted to : Submitted by:

Ms. Neha Praveen Name : Paryushi Koshal
Date : 5/1/2021 Semester: 5th sem
Marks Obtained ______
 ACKNOWLEDGEMENT

I have put in efforts in this assignment. However, it would not

have been possible without the kind support and help of many
individuals and organizations. I would like extent my sincere
thanks to all of them.

I thank my God for providing me with everything that I required

in completing this assignment.

I am highly indebted to the Teacher in Charge Ms. Neha Praveen

for guidance and constant supervision as well as for providing
necessary information regarding the assignment and also for
her support in completing the assignment.

I would like to express my gratitude towards my parents for

their kind co-operation and encouragement which helped me in
the completion of this assignment.
My hearty thanks and appreciations go to my classmates in dev-
eloping the assignment and to the people who have willingly
helped me out with their abilities.

Student Name: Paryushi Koshal

 CERTIFICATE OF AUTHENTICITY

This is to certify that Paryushi Koshal student of Indore

Institute of Law has successfully completed the below
mentioned assignment under the guidance of Ms. Neha
Praveen during the year 2020-2021.

Student Name: Paryushi Koshal

 DECLARATION

I hereby declare that the assignment submitted for fulfilling

the essential criteria of INDORE INSTITUTE OF LAW, is a
record of an original work done by me under the guidance
of Ms. Neha Praveen, B.A.LLB, Indore Institute of Law for
the Academic session 2020 – 2021.

Signature of the Student:

Place: Indore Institute of Law

Date : 5/1/2021
 INDEX

1. ABSTRACT…………………………………………………………………………..… 2

2. INTRODUCTION……………………………………………………………………… 3

3. DEFINITIONS OF CUSTOM…………………………………………………………. 4

4. JUDICIAL TESTS FOR A VALID CUSTOM…………………………………….…. 5

5. THEORIES REGARDING TRANSFORMATION OF CUSTOM INTO LAW.....10

6. CLASSIFICATION OF CUSTOM……………………………………………...…….11

7. CONCLUSION………………………………………………………………………....12

8. BIBLIOGRAPHY………………………………………………………………………13

9. PLAGIARISM REPORT………………………………………………………………14

1
 1. ABSTRACT

Custom is a habitual course of conduct observed uniformly and voluntarily by the people.
Custom occupies an important place in regulation of human conduct in almost all the societies.
In fact, it is one of the oldest sources of law-making. But with progress of the society custom
gradually diminish and legislation and judicial precedents become the main source. Custom is
created by the people, by their unconscious adoption of a certain rule of conduct whenever the
same problem arises for solution and its authority is based on nothing but its long continued use
and recognition by the people. Custom is some kind of special rule which is followed from time
immemorial. Law based on custom is known as customary law. Custom, as a source of law,
involves the study of a number of its aspects: its origin and nature, its importance, reasons for its
recognition, its classification, its various theories, its distinction with prescription and usage, and
the essentials of a valid custom.

2
 2. INTRODUCTION

Custom is one of the oldest forms of law making. In primitive societies human conduct was
regulated by practices which grew up spontaneously and were later adopted by the people. What
was accepted by the generality of the people and embodied in their customs was deemed to be
right. So, custom has played an extremely significant role as a source of law, till other sources of
law like legislation and precedent acquire prominence. Customs have been the most potent force
in molding the ancient law.

The word ‘custom’ is derived from an old French word ‘Coustume’. Some says that the word
‘custom’ is based on Latin word ‘Consuetudo’, some says that the word ‘Custom’ is derived
from the word ‘Consuetus’. The word ‘custom’ literally, grammatically, or ordinarily means;
tradition, practice; usage; observance; way; convention; procedure; ceremony; ritual; ordinance;
form; formality; fashion; mode; manner; shibboleth; unwritten rule; way of doing things; formal;
praxis; style; etiquette; routine; habit; usual; rite; Solemn; unwritten code; conventional social
behaviour; etc.

A custom is a continuing course of conduct which may by the acquiescence or express approval
of the community observing it, has come to be regarded as fixing the norm of conduct for
members of society. When people find any act to be good and beneficial, apt and agreeable to
their nature and disposition, they use and practice it from time to time, and it is by frequent use
and multiplication of this act that the custom is made. Custom is a rule of conduct which is
spontaneously observed by the society as a tradition, habit and usage, but not in pursuance of
law. The chief characteristic of the custom is that, it is a generally observed course of conduct.
The best illustration of the formation of such habitual course of action is the mode in which a
path is formed across a common. One man crosses the common, in the direction which is
suggested either by the purpose he has in view, or by mere accident. If other follow in the same
track, which they are likely to do after it has once been trodden, a path is made. Custom may be
considered as a fact and as a law. As a fact, it is simply the frequent and free repetition of acts
concerning the same thing; as a law, it is the result and consequence of that fact.

3
 3. DEFINITIONS OF CUSTOM

Custom is an important source of law and it is desirable to define the same. Custom has been
defined by various jurists as per their notion, understanding, philosophy, views and opinion. The
different jurists also defined custom on the basis of source, validity, practice, history &utility.
Some of the important definitions of custom are as follows:

1. Salmond: - According to Salmond, “custom is the embodiment of those principles which have
commended themselves to the national conscience as principles of justice and public utility”.

2. Austin: - According to Austin, “custom is a rule of conduct which the governed observe
spontaneously and not in a pursuance of law set by a political superior”.

3. Allen: - According to Allen, “custom as a legal and social phenomenon grows up by forces
inherent in society, forces partly of reason and necessity and partly of suggestion and limitation.”
4. Holland: - He defined custom as “a generally observed course of conduct.”

5. Keeton: - According to him, “customary law may be defined as those rules of human action
established by usage and regarded as legally binding by those to whom the rules are applicable,
which are adopted by the courts and applied as source of law, because they are generally
followed by the political society as a whole, or by some part of it.”

6. Harprasad v. Shivdayal. In this case the judicial committee of the Privy Council observed,
custom as a rule which in a particular family or in a particular district or in a particular sect, class
or tribe, has from long usage obtained the force of a law.

7. Halsbury laws:-“A custom is a particular rule which has existed either actually or
presumptively from time immemorial, and has obtained the force of law in a particular locality,
although contrary to or not consistent with the general common law of the realm.”

8. According to strand’s judicial dictionary of words and phrases, “custom may be defined to be
law or right not written, which being established by long use and the consent of our ancestors,
hath bin and daily is put in practice.”

4
 4. JUDICIAL TESTS FOR A VALID CUSTOM

Each and every custom cannot be legally enforced. They must be proved before the courts like
any other thing before they can have the force of law. Custom to be legally recognized by the
courts and acquire the binding force of law evolved some judicial tests. These tests are as
follows:

4.1. Immemorial Antiquity:

The first test of a valid custom is that it must be immemorial. It must be old or ancient and must
not be of recent origin. Allen, Paton, Salmond and all other jurists are of the views that before
custom can be have the validity in law; it must be shown that the custom is of immemorial
antiquity or origin. In the words of Allen, “a mere habit, practice, or fashion which has existed
for a number of years nobody supposes to be Ipso facto an obligatory custom; antiquity is the
only reliable proof of resistance to the changing conditions of different ages.” In ancient Hindu
law also, the antiquity was one of the essentials for the recognition of custom. Manu said,
“Immemorial custom is transcendental law”. The idea of immemorial custom was derived by the
law of England from the Canon law, and by the Cannon law from the Civil law. Time
immemorial means in the Civil law and Cannon law and in the systems derived there from and
originally meant in England also time so remote that no living man can remember it or give
evidence concerning it.

Supreme Court in Gokul Chand v. Parvin Kumari1, decided the matter once for all by laying
down that the English rules of custom in order to be valid must have been used so long that the
memory of man runneth not to the contrary should not be strictly applied to the Indian customs.
In India it has been said that a custom must be of old nature, but there is no such fixed period for
which it must have been in existence as it is in the English law.

4.2. REASONABLENESS

The second important judicial test of a valid custom is that it must be reasonable. It must not be
unreasonable. It must be useful and convenient to the society. If any party challenges a custom, it
must satisfy the court that the custom is unreasonable. That is the burden of proof lies upon the

1
1952 AIR 231
5
person who challenges the custom. To ascertain the reasonableness of a custom it must be traced
back to the time of its origin. The unreasonableness of a custom must be so great that its
enforcement results in greater harm than if there were no custom at all. According to prof. Allen,
the unreasonableness of the custom must be proved and not its reasonableness. The authority of a
prevailing custom is never absolute, but it is authoritative provided it conforms to the norms of
justice and public utility. Sir Edward Coke pointed out that a custom is contrary to reason if it is
opposed to the principles of justice, equity and good conscience. Salmond has rightly suggested
that before a custom is denied legal recognition, it must be found out that the mischief resulting
from its enforcement outweighs the harm that would result from the multiplication of the natural
expectation of the people. The judicial committee of the Privy Council, delivering its judgment
through Sir James Colville in Raja Varma v. Ravi Varma observed that a custom which is not
reasonable is invalid in law and not binding. In this case it was held that a custom permitting the
sale of trusteeship of a religious endowment for pecuniary advantage of the trustee as
unreasonable custom.

The reasonableness must not judge by our modern view of suitability. A custom should be
regarded as sufficiently reasonable when it is not opposed to the fundamental principle of
morality, or of the law of the state in which it exists, or principles of justice, equity and good
conscience.

4.3. MORALITY

Third test of a valid custom is that a custom, to be valid, must not be immoral. It is a well-
recognized rule that a custom should not be opposed to decency and morality. A custom must not
be opposed to public plicyor justice, equity or good conscience. In Mathura Naikin v.
EsuNaikin2, the Bombay High Court has held that the custom of adoption of girls for immoral
purposes, like dancing is illegal as it was designed to perpetuate this profession. In case of
Balusami v. BalaKishna, the custom permitting marriage with daughter’s daughter has also been
held immoral. In Gopi v. jaggo3, the Privy Council allowed a custom which recognized and
sanctioned re marriage of a woman who had been abandoned and deserted by her husband. The

2
(1880) I.L.R. 4 Bom.545
3
(1936) 38 BOMLR 751
6
Bombay High Court, in Narayan v. Laving 4 held a custom permitting a woman to desert her
husband at her pleasure and marries again without his consent to be immoral. Similarly in
Keshav Hargovan v. BaiGundi5, the same Court held as custom by which the marriage tie could
be dissolved by either husband or wife against the wish of the divorced party on payment of a
sum of money, to be immoral.

4.4. CONTINUANCE

The fourth test for a valid custom is that it must have been continuously observed without any
interruption. General rule is that if a custom has not been followed continuously and
uninterruptedly for a long time, the presumption is that it never existed at all. It must have been
in existence and recognized by the community without any intervening break, for such duration
as may, under the circumstances of the case, be recognized as reasonably long. In case of
Muhammad Hussainforki v. Syed Mian Saheb, it was held that unless there is continuity there is
no custom. A custom may be abrogatory and if it abrogates another custom, such other custom
ceases to exist. Blackstone has drawn a distinction between the interruption of the “right” and the
interruption of the mere ‘possession”. It is the discontinuance of the ‘right’, for howsoever small
a time that ends the custom. It means that if possession for some time is disturbed, but the claim
to enjoy the custom is not abandoned, the custom continues. The discontinuance of the right even
for a day shall put the custom to an end.

4.5. PEACEABLE ENJOYMENT

The next important test is that custom must have been enjoyed peaceably. If a custom has been in
dispute for a long time in a court of law or otherwise, it will negate the presumption that it did
originate by consent as most of the custom naturally did. Therefore, for the enforceability of a
custom; it is necessary to show that the custom has been enjoyed without any disturbance or
contest. A custom is based on consent or habit, and unless there was an undisturbed existence of
the custom, we cannot say that it was based on the general consent of the people.

4.6. CONSISTENCY

4
(1878) ILR 2 Bom 140
5
(1915) 17 BOMLR 584
7
The test for a valid custom is that it must be in conformity with the statute law. It should not be
contrary to the statutory law. A custom should necessary yield where it conflicts with a statutory
law. This rule is observed as a positive principle of law in England and countries like India
which follow English law. In India the position is clear that custom must not be opposed to
statute law, as the same thing has been held by the Indian Supreme Court in Darshan sing v.
NaimumNisa Bibi. Obviously custom cannot abrogate a newly enacted legislation. For instance,
among the Hindus all the customary forms of marriage, adoption, succession, or property have
been abrogated by the newly enacted legislation concerning such problems. Hence an old
inconvenient and unjust custom cannot be set up against statutory law. For instance, the custom
of child marriage and usage of dowry has no legal force in modern India. According to Coke,
“No custom or prescription can take away the force of an Act of parliament. “ A state can
abrogate a custom and not vice versa.

4.7. CERTAINTY

Certainty is an indispensable condition of a valid custom. A custom, however, ancient must not
be indefinite and uncertain. In Wilson v. Willes 6, it was held that a custom must be certain and
not vague. A custom which is vague or indefinite cannot be recognized. It is more a rule of
evidence than anything else. The court must be satisfied by a clear proof that custom exists as a
matter of fact, or as a legal presumption of fact. In one case, the plaintiff claimed a customar y
right of easement for the shadow falling from the branches of trees hanging from the neighbour’s
field. Mr Justice Pandalai of the High court of Madras ruled that there cannot be a custom
relating to shadow of tress because it is so uncertain, ambiguous and transitory that it cannot give
rise to any customary right.

4.8. COMPULSORY OBSERVANCE

A custom to be legally recognized as a valid custom must be observed as a right. It means that
custom must have been followed by all concerned without recourse to force and without the
necessity of permission of those who are adversely affected by it. It must be regarded by those
affected by it not merely as an optional rule but as an obligatory or binding rule of conduct. If a
practice is left to individual choice; it cannot be treated as a customary law. These requisites are

6
Wilson v Willes (1806)
8
expressed in the form of the rule that the user must be nec vi nec clam necprecario- not by force,
nor by stealth, nor at will. In Hamperton v. Hono, it was held that if the observance of a custom
is suspended for a long time, it would be assumed that such a custom was never in existence.

4.9. JURIDICAL NATURE

A custom must be of a juridical nature. A custom must refer to legal relations. A mere voluntary
practice not conceived of as being based on any rule of right or obligation does not amount to a
legal custom.

4.10. PUBLIC POLICY

Another test for the validity of a custom is that it should not be opposed to public policy. This
test may be included in the test of reasonableness, as it is very wide term and it may include
public policy as well. In case of Budanso v. Faturr, a custom which would enable a woman to
marry again during the life time of her husband without any defined rules by which the marriage
with the first husband is dissolved before the second marriage is contracted, was held to be
contrary to public policy. In nut shell a custom is valid if it not contrary to justice, equity or good
conscience or opposed to public policy.

4.11. NOT BY ANALOGY

Custom cannot be extended by analogy. It must be established inductively, not deductively and it
cannot be established by priori methods. It cannot be a matter of theory but must be always be a
matter of fact. Likewise one custom cannot be deduced from other. Custom also cannot be set up
against fundamental rights.

9
 5. THEORIES REGARDING TRANSFORMATION OF CUSTOM INTO
LAW

Historical theory:-

The main exponents of this theory are Karl Von Savigny, his disciple Puchta, Blackstone, and Sir
Henry James Summer Maine. According to Savigny, custom is per se law. He says law is based
on custom. A custom carries its justification in itself. According to Puchta, the custom is
independent of the law of sovereign. It is independent of any declaration or recognition by the
state. Sir Henry Maine regards custom as source of formal law. According to Manu, “custom is
transcendent lawAllen also pointed out that all customs cannot be attributed to the common
consciousness of the people According to this theory, the growth of law does not depend upon
the arbitrary will of any individual. Custom is derived from the common consciousness of the
people. It springs from an inner sense of right. Law has its existence in the general will of the
people. The Historical theory has been criticized by Paton as “The growth of most of the customs
is not result of any conscious thought but of tentative practice” 7

Analytical theory: -

The main exponent of this theory is Austin. According to him, custom is not law in itself, but it is
a source of law. If a custom is not recognized by the legislation and approved by the judiciary, it
will not become a law. Gray also says that true view is that the law is what the judges declare.
The legislation, precedents, customs and morality are all sources of law. According to Holland,
customs are not laws when they arise but they are largely adopted into laws by State recognition.
A custom is a law only to the extent to which, 16 and from the time, when the sovereign
sanctions it. According to him, custom is a legal material and source of law. This view is also
supported by Salmond. Gray also concedes that custom is one of the sources of law but it is
certainly not the sole source of law. The Analytical theory has been criticized by Allen in these
words-“Customs grow by conduct and it is therefore, a mistake to measure its validity solely by
the element or express sanction accorded by courts of law or by other determinate authority”

7
Tripathi B,N. Mani: An Introduction to Jurisprudence(Legal Theory),ed.,2008.

10
 6. CLASSIFICATION OF CUSTOM

Custom can be classified into two types:

1. Custom without sanction, and

2. Custom having sanction.

Custom having sanction can be further classified into two types:

i. Legal Custom, and

ii. Conventional Custom.

1. Custom Without Sanction: These are those customs which are non-obligatory. They are all
observed due to presence of the public opinion. Austinian term for them is positive morality.

2. Custom Having Sanction: These are those customs which are enforced by the State. These
customs are backed by sanction. These customs have two types which are as follows:

i. LEGAL CUSTOM: - The legal customs are those whose legal authority is absolute and
unconditional. These customs operate as a binding rule of law. They have been recognized by
the courts and have become a part of the law of the land. They are enforced by the courts.
Legal customs are of two types:- a. Local custom b. General custom

ii. CONVENTIONAL CUSTOM A conventional custom is also called “usage”. In simple

words, a conventional custom is conditional and condition is that it will be binding on the
parties only, if it has been accepted and incorporated by them in their agreement. A
conventional custom is binding on the parties not because of any legal authority, but because
of the fact that it has been expressly or impliedly incorporated in a contract between the
parties concerned. When two parties enter into contract, generally whole terms of the
agreement are not set out expressly and a large part of most contracts is implied. The
intention of the parties to the contract can be gathered from the customary law prevalent in
the trading community. There is an important point to mention here that in Asarabulla v.
Kiamtulla, it was held that a conventional custom or usage which is contrary to any express
condition laid down in a contract shall not be enforceable by law.

11
 7. CONCLUSION

In the early stages of the society the customs are the most important, and in some cases, the sole
source of law. The customs lie in the foundation of all the legal system. They come into
existence with the existence of the society. Custom is the repeated practice of the primitive
society. Custom is a rule or practice which is followed by the people from time immemorial.
Customs are rationalised and are incorporated and embodied in legal rules. The influence of
custom can be traced in any legal system. In Roman law the creative rule of the magistrates, in
English law that of equity judges, and a galaxy of great writers on law from Bracton to
Blackstone, in Hindu law that of the Smritikars, the Commentators and the Privy Council
decisions have materially affected the form as well as substance of the customs. Custom is a
valid source of law. But it must be a valid custom. The various factors which make a custom
valid and binding are immemorial antiquity, reasonableness, continuity, peaceful enjoyment,
certainty, conformity with public policy and statutes, and morality.

12
 8. BIBLIOGRAPHY

Books: Websites:

1. Black's Law Dictionary, (1912).

2. C.K. Allen, Law in the Making, 1964.

3. Fuller, Lon L.: Problems of jurisprudence-Brooklyn, Foundation Press, 1949.

4. Ratanapala Suri, Jurisprudence, 1st South Asian ed. 2011, Cambridge.

5. Tripathi B,N. Mani: An Introduction to Jurisprudence(Legal Theory),ed.,2008.

6. http://lawcommissionofindia.nic.in/.

7.http://www.transnational.deusto.es/IP2011/docs/Introduction20to%20Private
%20International%20Law.pdf

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 PLAGIARISM SCAN REPORT

Date 2021-01-04

Words 267

0% 100% Characters 1725

Plagiarised Unique

Content Checked For Plagiarism

Custom is one in all the oldest kinds of law creating. In primitive societies human conduct was regulated by practices that grew up
impromptu and were later adopted by the folks. What was accepted by the generality of the folks and embodied in their customs was
deemed to be right. So, custom has contend a particularly important role as a supply of law, until different sources of law like legislation and
precedent acquire prominence. Customs are the foremost potent force in molding the traditional law. The word ‘custom’ comes from
associate degree Old French word ‘Coustume’. Some says that the word ‘custom’ relies on Latin word ‘Consuetudo’, some says that the
word ‘Custom’ comes from the word ‘Consuetus’. The word ‘custom’ virtually, grammatically, or commonly means; tradition, practice; usage;
observance; means; convention; procedure; ceremony; ritual; ordinance; form; formality; fashion; mode; manner; shibboleth; unwritten rule;
way of doing things; formal; praxis; style; etiquette; routine; habit; usual; rite; Solemn; unwritten code; typical social behaviour; etc. A custom
may be a continued course of conduct which can by the acquiescence or specific approval of the community observant it, has return to be
considered fixing the norm of conduct for members of society. once folks notice any act to be sensible and useful, apt and agreeable to their
nature and disposition, they use and apply it from time to time, and it's by frequent use and multiplication of this act that the custom is
created. Custom may be a rule of conduct that is impromptu discovered by the society as a practice, habit and usage, however not in
pursuance of law.

Matched Source

No plagiarism found